'Too close to call': Legal expert says Judge Aileen Cannon could drop critical evidence against Trump

Among the first actions of Donald Trump's legal team will likely be a procedural motion his former attorney Tim Parlatore teased Tuesday to ask that pieces of evidence be excluded because they were obtained from notes taken by Trump's lawyer Evan Corcoran and should be covered by client-attorney confidentiality, a legal expert said Wednesday.

A federal court and federal appeals court has already ruled on the effort, but Trump's team may be able to get his new judge, Aileen Cannon, to throw it out of court.

But, speaking about the issue on MSNBC, former federal prosecutor and University of Alabama School of Law Professor Joyce Vance explained that doing so could mean Judge Aileen Cannon is opening a whole new can of worms.

"A lot of it will depend on how Judge Cannon decides to view the legal issues involved here and, of course, there's the wide-open question of where she stands on this case," Vance explained.

"In reality, the former president's lawyers will have a good argument to make here. It's a little bit complicated and inside of the weeds, but because this earlier decision saying that the notes could be used came in the process of a grand jury investigation, it's not what's called 'law of the case.' Law of the case essentially means that once there's been a ruling in a case that's been affirmed on appeal, the parties can't revisit it. You can't endlessly litigate those same issues in one case."

If the decision to allow the notes had come after the indictment, it likely would be an easier question, she said.

"But because we're talking about a grand jury decision made by a judge in another circuit, Judge Cannon may be able to reopen this can of worms, especially if Trump's lawyers can come forward with new facts that Judge [Beryl] Howell didn't have the chance to consider in Washington, or if they can come up with some sort of an argument that would manifest injustice would be worked on the former president. In other words, this one is wide open, too close to call."

The case, she continued to explain, is a fairly solid one to have the attorney-client privilege broken because it was in furtherance of a crime. The question is whether Judge Cannon will care.

"Will she do what appears to be the logical thing based on these sorts of allegations and permit the government to continue to use this evidence, or will she rule against them?" Vance said. "And that, of course, would force the choice the government would have to decide whether to go ahead and appeal her."

An appeal would mean more delays.

"It's likely that they would take an appeal and that might even give them the opportunity to ask the court of appeals to have her reassigned or to have the case reassigned to a different judge on remand," Vance explained

She said that any defendant has the right to ask their lawyer if he has to comply with a subpoena. What he can't do is use his lawyer to dodge a subpoena.

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